News

CCL’s Peck Speaks about Collateral Source Ruling at Delaware Trial Lawyers CLE

October 30th, 2015

CCL President Robert S. Peck told Delaware trial lawyers that the recent state supreme court decision abrogating the collateral source rule in Medicare cases relied on questionable premises that can undermine the application of the rule in other cases if not challenged in a carefully constructed series of cases at a continuing legal education seminar Oct. 30. Peck was the featured speaker at the seminar and then joined a panel discussion after his opening remarks.

In Stayton v. Delaware Health Corp., decided June 12, 2015, the Delaware Supreme Court departed from the state’s historic treatment of the collateral source rule on the notion that, unlike private insurance, the plaintiff is not deprived of the benefit of the bargain, having not negotiated medical care discounts through an insurer. Instead, it found that the discount afforded through Medicare was for the benefit of the taxpayer. Yet, the decision, Peck said, ignored the various forms of Medicare coverage, some of which require beneficiaries to pay month premiums and contract through private insurers. While defendants have already begun to argue that the Stayton decision should be expanded to Medicaid and other instances where benefits have traditionally been treated as collateral sources, an expanded rule implicates the jury-trial, open-courts, and equal-protection rights guaranteed by the Delaware Constitution. CCL is already involved in one case where Stayton’s application to Medicaid benefits is at issue and awaiting a trial court’s determination.

CCL Attorneys Participate in AAJ Committee, Board Meetings

October 26th, 2015

CCL attorneys participated in the quarterly meetings of AAJ’s committees and Board of Governors in Washington, DC. During the Legal Affairs Committee meeting, discussions centered around developments on federal and state court rules and cases of interest pending in the Supreme Court of the United States. Participating in the meeting and providing background information to the committee members were CCL attorneys Valerie Nannery, Jeffrey White, and Robert Peck.

 

Peck Chairs Fall Meeting of RAND Institute for Civil Justice

October 22nd, 2015

CCL President Robert S. Peck chaired the Fall Board of Overseers meeting of the RAND Institute for Civil Justice in Pentagon City, Virginia on October 22. The ICJ is a think tank that conducts empirical research of issues affecting the civil justice system. During the meeting, members of the board were treated to previews of some of that ongoing research. Former Mississippi Governor Haley Barbour spoke at the board diner that evening about his experiences in dealing with a disaster after Hurricane Katrina struck. Peck is serving an unprecedented third year as chair of the board.

Peck Speaks at AAJ State Summit

October 21st, 2015

CCL President Robert S. Peck described issues being litigated in courts around the country that affect civil litigation at the American Association for Justice’s State Summit, a gathering of state trial lawyer presidents and executive directors in Washington, D.C. on October 21. Peck reviewed some of the cases pending this term before the U.S. Supreme Court, including four cases in which CCL serves as counsel of record: two under the title of Wal-Mart v. Braun, as well as Ortiz v. United States and Johnson & Johnson v. Reckis. The Wal-Mart cases involve undercompensation of Pennsylvania workers for their paid rest breaks, in which Wal-Mart attacked the use of extrapolation for records the company deliberately stopped keeping to avoid liability. Ortiz is a challenge to government immunity for medical malpractice at a military hospital that resulted in brain damage to a newborn. The U.S. Court of Appeals for the Tenth Circuit, in contrast to decisions from other circuits, held the government immune, which also results in discrimination against mothers in the military, when the immunity would not apply if the military member was the father. Finally, in Reckis, Johnson & Johnson is arguing that a significant verdict for a young girl’s catastrophic injuries resulting from Children’s Motrin, which had not relevant warning at the time, is preempted.

Peck also described some of the challenges to damages caps the CCL is undertaking, including one now pending in the Oklahoma Supreme Court.

Peck Participates in Supreme Court Preview on Capitol Hill

October 9th, 2015

CCL President Robert S. Peck told invitees of the Congressional Civil Justice Caucus that the upcoming Supreme Court term has enormous potential to change class actions, but was more likely to find that the cases before it do not provide the vehicles for significant changes. Peck made the presentation October 9 in a House Judiciary Committee hearing room, with American Tort Reform Association General Counsel, Victor Schwartz, providing an alternative view.

Among the cases discussed were Tyson Foods v. Bouaphakeo, a case about compensating chicken processing plant workers in Iowa for the time it takes for them to “don and doff” protective clothing, as required by their contracts. In the case, the defendant has argued that the case is not susceptible for class-action treatment because a small percentage of the workers were not eligible for compensation and others took different amounts of time at the task. Peck said that these arguments ignore the rules and precedents that apply to employment law, which are likely to figure prominently in the upcoming oral argument, making it a poor vehicle for establishing a new class action precedent.

Another case discussed was Spokeo, Inc. v. Robins, a case that raises the question of whether Congress can create a cause of action for a statutory injury when there allegedly was no particular and concrete injury suffered. The case revolves around a claim that an online profile of the plaintiff by a company that publishes reports used by employers, which provided inaccurate information about him, including that he was employed and married with children, when he was not. Robins claimed the false information harmed him in seeking employment. He sued under the Fair Credit Reporting Act, which obligates those publishing covered reports like this one to take steps to ensure accuracy and creates a cause of action when the reports are inaccurate. The case is set to be argued November 2.

Peck Participates in Task Force Reexamining State Court Rules

May 15th, 2015

CCL President Robert S. Peck participated in deliberations of a task force appointed by the Conference of Chief Justices to examine issues with rules governing civil cases in state courts, when the task force met May 15 in Denver, CO. The task force is examining issues of cost and delay in the system, as well as best practices and rules proposals that will address these problems. It is pursuing a tracking system that assigns cases to simplified, typical and complex tracks, providing judicial resources to each case in line with its complexity.

CCL Participates in ABA TIPS Spring Meeting

May 2nd, 2015

CCL’s Robert S. Peck represented the plaintiff’s perspective in committee and other meetings during the American Bar Association’s spring meeting of the Tort Trial and Insurance Law Section (TIPS) in Philadelphia. Peck is a member of the TIPS Plaintiffs Policy Task Force, where issues affecting the plaintiffs’ bar were discussed. In addition, he attended various meetings of the governing Council of TIPS, on which he serves, co-chaired the ABA/TIPS Committee meeting, and joined the discussions at the Judicial Division/TIPS meeting.

Peck Speaks to New Jersey Attorneys

May 1st, 2015

CCL’s Robert S. Peck represented the plaintiff’s perspective in committee and other meetings during the American Bar Association’s spring meeting of the Tort Trial and Insurance Law Section (TIPS) in Philadelphia. Peck is a member of the TIPS Plaintiffs Policy Task Force, where issues affecting the plaintiffs’ bar were discussed. In addition, he attended various meetings of the governing Council of TIPS, on which he serves, co-chaired the ABA/TIPS Committee meeting, and joined the discussions at the Judicial Division/TIPS meeting.

CCL’s Nannery Attends Civil Rules Advisory Committee Meeting in Washington DC

May 1st, 2015

Representing the American Association for Justice at the Advisory Committee on Civil Rules meeting in Washington, D.C. April 9, CCL Senior Litigation Counsel Valerie M. Nannery observed reports on the progress of last year’s civil rules proposals and plans for new rules governing class actions.

Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit, and chair of the Committee on Rules of Practice and Procedure reported that the Supreme Court of the United States had approved the most recent set of rules proposals emanating from the committee, but requested a couple of changes to the Committee Notes that accompany the pending amendments to the Civil Rules. As is reflected in the Court’s transmittal to Congress, the Committee Notes to Rules 4 and 84 were changed from the last draft submitted for approval to the Judicial Conference.

The new Committee Note to Rule 4 makes clear that the reduction of the time for service from 120 days to 90 days “will increase the frequency of occasions to extend the time.” The original Committee Note stated that “Shortening the presumptive time for service will increase the frequency of occasions to extend the time for good cause.” This change ensures that district courts have the discretion to extend the time for service even when good cause for delay has not been shown.

The Committee Note on the abrogation of Rule 84 now says: “The abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.” This additional language appears to address the concerns of the overwhelming majority of those who commented on the abrogation of Rule 84 and most of the official Forms previously in the Rules.

The Advisory Committee also discussed plans for an unprecedented educational campaign to members of the bench and bar to encourage attorneys and judges to use and apply the amended rules, should they go into effect on December 1, 2015, which will occur unless Congress unexpectedly acts to stop them.

There was some discussion about the potential for “requester pays” discovery rules further down the line, although the Committee members appeared to agree to wait and see how the pending rule amendments change the landscape before further changes are considered. In response to the cost-shifting in discovery discussion, there was a suggestion that the Committee revisit mandatory disclosures under Rule 26(a)(1).

Finally, there was an extended discussion on the Rule 23 Subcommittee’s report and “conceptual sketches,” which can be found in the Agenda Book for the meeting. Many of the “conceptual sketches” are based on portions of ALI’s Principles of the Law of Aggregate Litigation. The members of the Advisory Committee gave a mixed response to several of the “sketches,” while other “sketches” did not garner much of a response. The Rule 23 Subcommittee is currently on a “listening tour,” discussing ideas for amendments to Rule 23 with groups of attorneys, academics and judges. They will be holding a “mini-conference” in Dallas-Fort Worth on September 11th, by invitation only.

Peck Speaks at AAJ Leaders Forum Retreat

April 25th, 2015

CCL President Robert S. Peck presented Civil Justice Today: Is a Hostile Takeover Taking Place? at the American Association for Justice’s 2015 Leaders Forum Retreat in Playa del Carmen, Mexico on April 25. Mr. Peck spoke about the many fronts on which a person’s constitutional right of access to the courts is being attacked. He described his recent testimony before a subcommittee of the House Judiciary Committee, which was pushing forward legislation to create mandatory sanctions for filings that are not supported by sufficient facts or law. In that testimony, he described the “failed experiment” with precisely the same rules, how it resulted in cost and delay through significant satellite litigation and was opposed by the Judicial Conference of the United States. He also described the countless obstacles placed before the courthouse door by state legislation, proposed procedural rules changes, recent U.S. Supreme Court decisions, and arguments being made to the Court. He described CCL’s many efforts challenging legislation, commenting on rules proposals, and opposing certiorari in Supreme Court. In particular, he described CCL’s recent brief in opposition to certiorari on behalf of the plaintiffs in Wal-Mart v. Braun, where the Pennsylvania state courts upheld a $187 million verdict in a wage-and-hour class action on behalf of 187,000 current and former Wal-Mart employees. Wal-Mart asked the Supreme Court to overturn the verdict because the company did not get to cross-examine all members of the class and because some of the damages were the product of extrapolation by experts. The CCL brief explained that Wal-Mart was not prohibited from cross-examining as many employees as it chose and did not take advantage of that opportunity. Moreover, the extrapolated evidence was the product of spoliation. Wal-Mart stopped keeping employee time records after it was first sued in other states. As a result, the jury was entitled to take an adverse inference from the lack of record keeping, which was required by law